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#408 Sex with a Minor

mp3 #408 Sex with Minors (mp3 file)


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Under California law, many types of sexual activity with a minor -- a person under age 18 -- are unlawful. California's Penal Code prohibits statutory rape, rape, incest, anal sex, oral sex, lewd and lascivious acts, penetration with a foreign object, child molestation, and sexual exploitation of minors. Many of these acts are felonies, with state prison penalties.

Under Penal Code Section 261.5, an act of sexual intercourse with a person under the age of 18 who is not the spouse of the perpetrator is unlawful, even if he or she gives consent, and even if the perpetrator is also under age 18. More information about this crime is available in SmartLaw message #407, "Statutory Rape in California."

Penal Code Section 261 defines rape, which is an act of sexual intercourse, accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Or

(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. Or

(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition is known, or reasonably should have been known, by the accused. This includes alcohol and drugs.

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. "Unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:

(A) Was unconscious or asleep, or

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred, or

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.

(5) It is also a rape where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

(6) It is also a rape where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. "Threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury or death.

(7) It is also rape where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. "Public official" means a person employed by a Governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

"Duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.

"Menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.

A companion law, Penal Code Section 264.1, deals with rape in concert, where an individual joins or helps the perpetrator, to commit an act of rape. Both adults and minors may be prosecuted for rape of another minor.

Penal Code Section 285 involves acts of incest. Incest is defined as either marriage or acts of sexual intercourse between parents and children, brothers and sisters, uncles and nieces, aunts and nephews, or grandparents and grandchildren.

Anal sex, also called "sodomy," is defined as sexual contact between the penis of one person and the anus of another person, as stated in Penal Code Section 286. Any sexual penetration, however slight, is enough to complete the act of sodomy. Evidence of ejaculation is not necessary. Anal sex is unlawful with a minor, even if the minor consents to anal sex. It is illegal to have anal sex with a minor, and both minors and adults may be prosecuted for anal sex with another minor. The law provides differing penalties, depending upon the age of the victim and the age of the perpetrator, with longer sentences imposed upon the perpetrator when the victim is very young, or if there is a big difference in age. Additional penalties may be imposed if the victim is overcome by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person, or if two or more persons are involved. Other circumstances of unlawful sodomy are similar to the circumstances of rape.

A person who commits what is called a lewd and lascivious act on any part of the body of a person under the age of 14 may be prosecuted under Penal Code Section 288. Lewd and lascivious acts include oral sex, anal sex, and other kinds of sexual conduct which involve any touching of a child under 14 years of age by the perpetrator, or by the child at the direction of the perpetrator for the purpose of arousing, appealing to or gratifying the lust, or passions or sexual desires of that person or of the child. Additional penalties may be imposed if the perpetrator uses force, violence, duress, menace, or threat of great bodily harm. Both minors and adults may be prosecuted under this law, Penal Code Section 288. Lewd and lascivious acts with children under age 14 are unlawful, even if the child consents, and even if the perpetrator believes in good faith that the child is 14 years old or older.

Penal Code Section 288a deals with oral sex with another person, defined as the contact of the mouth of one person with the sexual organ or anus of another person. Persons may be guilty of this law whether they carry out the act of oral sex on a minor under the age of 18, or they allow the other person to act on them. Both minors and adults may be prosecuted for oral sex with a minor, and, like the sodomy statute, there are additional penalties when the victim is very young, or there is a big difference in the age of the perpetrator and the age of the victim, if force is used, or if two or more persons are involved. Oral sex is unlawful with a minor, even if the minor consents. Other circumstances of unlawful oral sex are similar to the circumstances of rape.

Penal Code Section 289 deals with the penetration of a genital or anal opening of another person, using any foreign object, substance, instrument or device, or by any unknown object, where such penetration is accomplished by force, violence, duress, or menace, or threat or immediate and unlawful bodily injury on the victim or the person of another for the purpose of sexual arousal, gratification, or abuse. The foreign object statute includes any body part, such as a finger, but not a sexual organ. It is unlawful for an adult or another minor to penetrate the genital or anal opening with a foreign object, of a minor under the age 18, even if the minor consents. Other circumstances of unlawful sex with a foreign object are similar to the circumstances of rape.

Child molestation, which is defined as any act motivated by unnatural or abnormal sexual interest in children which disturbs, irritates, troubles or offends the victim, is found in Penal Code Section 647.6. The child does not have to be touched in order to have been molested, and both minors and adults may be prosecuted under this law. This law applies to any victim who is under age 18.

The sexual exploitation of minors is found in a variety of Penal Code Sections, including Penal Code Section 311.2, which deals with pornography and prohibits the importation, sale or distribution of obscene matter involving persons under age 18. Penal Code Section 311.3 prohibits the development, duplication, or exchange of any film, photograph, videotape, negative or slide depicting a child under 14 years of age engaged in certain types of sexual conduct. Another section, 311.4, prohibits the hire, employment or use of a minor to do or assist in certain sexual acts including modeling, alone or with others, for the purpose of preparing a film, photograph, negative, slide or live performance involving sexual conduct by a minor for commercial purposes.

Persons convicted of violating most of these laws, or attempts to violate them, must register as sex offenders. This means that they will have to report to the police department of the city or county in which they live, and furnish their addresses, fingerprints, and pictures of themselves to the police. Persons convicted of the same crimes in other states must also register as sex offenders when they come to California.

Those who have teaching credentials issued by the state of California should be aware that conviction of unlawful sexual activities with a minor may be grounds for revocation of a teaching credential. Other professional licenses or occupational licenses may also be endangered if the licensee is arrested for unlawful sexual activity. A person who receives notice from a state licensing agency that his or her credentials are being reviewed because of an arrest should consult a lawyer familiar with administrative and employment law.

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